Photo Credit: Fiveable, Courts and Society Review: 6.1 Right to Counsel, (last updated Aug. 20, 2024), https://fiveable.me/courts-society/unit-6/counsel/study-guide/4iKskTZZehZeIIjq.
Authored by Kaitlyn Fowler
The Sixth Amendment provides numerous trial-related protections and hosts one of the most crucial rights for those accused of a crime—the right to “have the Assistance of Counsel for his defence.”[1] This right is guaranteed to anyone being charged with a crime for which “a term of imprisonment is imposed,” regardless of their ability to pay for counsel.[2] If the defendant is unable to pay for counsel, an attorney will be appointed for them.[3] This right “attaches at the initiation of adversarial judicial proceedings, ‘whether by way of formal charge, preliminary hearing, indictment, information or arraignment.’”[4] The caveat for indigent defendants is that they cannot choose their counsel, while those who opt to get a private attorney clearly can.[5] The constitutionality of this discrepancy has been upheld by the United States Supreme Court due to an indigent defendant not being permitted to “insist on representation by an attorney he cannot afford.”[6]
A further discrepancy regarding the differences between an indigent defendant and one who can afford legal counsel has never directly been addressed by the Supreme Court—whether an indigent defendant has the right to continued representation by counsel who has been appointed to them throughout the course of all proceedings related to the case.[7] This question was recently raised by a man named William Davis (“Davis”), who believes his Sixth Amendment right to counsel was violated when his appointed counsel changed.[8]
Davis was arrested and charged with multiple vehicular offenses on April 20, 2017.[9] Because he was found to be indigent, Davis was appointed Garen Gervey (“Gervey”) as his public defender.[10] Subsequently, “Davis, through counsel, moved for a continuance” due to various scheduling conflicts, which the Court denied.[11] Because Davis’ current attorney would only be able to continue to represent him if granted a continuance, Davis attempted his motion for a second time, asserting that he had a right to continued representation by Gervey.[12] The Court once again denied the motion on the grounds that “‘substitution of one public defender with another does not violate the Sixth Amendment… absent evidence of prejudice.”[13] The Court determined that Davis would not face any prejudice, as the nature of the case was simple enough that a reasonably competent attorney would easily be able to prepare for trial.[14] Davis was subsequently convicted, and the matter was then brought before the Colorado Court of Appeals.[15]
The Court of Appeals sided with Davis and reversed his conviction on the grounds that “indigent defendants have a constitutional right to continued representation by appointed counsel.”[16] The People petitioned the Colorado Supreme Court for review, and it granted certiorari.[17] Ultimately, the Court found a difference between the “right to effective assistance of counsel and the more limited right to choice of counsel.”[18] This limited right to choice of counsel is what ultimately grants the right to continued representation by that specific counselor.[19] The Colorado Supreme Court thus reversed and remanded the decision of the Appellate Court.[20]
A writ of certiorari was then presented to the United States Supreme Court. While awaiting the Court’s decision, several briefs were submitted to the Court, including one from the National Association of Criminal Defense Lawyers (“NACDL”).[21] The NACDL contended that the right to continuous representation should be viewed as even more important in regard to indigent defendants, as they are already “at the mercy of overworked public defenders and court appointed attorneys.”[22] Arguably, these restraints already make it hard for public defenders to advocate zealously for their indigent clients, so the NACDL advocated that absent a clear right to continued representation by appointed counsel, that goal is nearly impossible.[23]
On the contrary, the state of Colorado’s position is that the Court’s prior decisions have already decided this issue—the Sixth Amendment right to counsel does NOT equate to continuity of such counsel.[24] The crux of Colorado’s argument is that the continuity right is contingent on the right to choose one’s counsel.[25] Because indigent defendants do not choose their counsel, rather, counsel is chosen for them, the added right of continuity cannot be said to attach.[26]
Ultimately, the Court denied the petition for certiorari on October 15, 2024. It can be assumed that this is the Court’s way of implicitly siding with Colorado, due to Colorado’s insistence that there was no need to take the case because there is already an answer. All one can do at this point is wait and see if this issue continues to be litigated, as eventually the Court may find a case compelling enough to warrant review. Until then, lower courts will likely continue to interpret and apply contradictory precedents, leading to varied approaches across jurisdictions.
[1] U.S. Const. amend. VI.
[2] U.S. v. Bryant, 579 U.S. 140, 143 (2016) (citation omitted).
[3] Reynolds v. State, 114 So. 3d 61, 88 (Ala. Crim. App. 2010) (“An indigent defendant who cannot afford to retain an attorney has an absolute right to have counsel appointed by the Court.”) (quotation omitted) (citation omitted).
[4] Joseph P. Van Heest, Rights of Indigent Defendants After Alabama v. Shelton, 63 Ala. Law. 370, 370 (2002) (quoting Kirby v. Illinois, 406 U.S. 682, 689 (1972)).
[5] See Caplin & Drysdale, Chartered v. U.S., 491 U.S. 617, 624 (1989) (“The [Sixth] Amendment guarantees defendants in criminal cases the right to adequate representation, but those who do not have the means to hire their own lawyers have no cognizable complaint so long as they are adequately represented by attorneys appointed by the courts.”).
[6] Wheat v. U.S., 486 U.S. 153, 159 (1988).
[7] Docket No. 23-1096, Pet. at i.
[8] See id.
[9] People v. Davis, Case No. 21SC388, ¶ 3 (Colo. 2023).
[10] Id.
[11] Id. ¶ 4.
[12] Id. ¶ 5.
[13] Id. ¶ 6 (quoting People v. Coria, 937 P.2d 386, 389 (Colo. 1997)).
[14] Id.
[15] Davis, Case No. 21SC388, ¶¶ 8-9.
[16] Id. ¶ 9.
[17] Id. ¶ 10.
[18] Id. ¶ 11.
[19] Id.
[20] Id. ¶ 25.
[21] See Brief of Nat’l Ass’n of Criminal Defense Lawyers as Amicus Curiae in Support of Petitioner, Davis v. Colorado, No. 23-1096 (May 23, 2024).
[22] Id. at 6.
[23] Id. at 7.
[24] See Brief of Colorado in Opposition, Davis v. Colorado, No. 23-1096 (July 8, 2024).
[25] Id. at 7.
[26] Id.
American Journal of Trial Advocacy 